Army Corps of Engineers v. Hawkes – Regulatory Reform
U.S. Supreme Court
The Clean Water Act (CWA) prohibits dredging and filling activities within areas deemed jurisdictional. Landowners face civil penalties of $37,500 for negligent violations, and up to $50,000 in penalties or jail for knowing violations. The difficulty is that it is often difficult to say whether one’s land is covered by the CWA. But once Army Corps of Engineers definitively determines that a given property is subject to CWA restrictions, NFIB maintains that a landowner should have a right to seek judicial review if they disagree. In this case, a small business sought to challenge the Corps’ official jurisdictional assessment in court, but Army Corps argues that they have no right to go to court yet. Instead, Army Corps argues that the landowner must apply for a federal permit—which is exorbitantly expensive and only required by law if the Corps is correct in asserting jurisdiction. In our brief to the Supreme Court, NFIB Small Business Legal Center emphasized that due process requires that a landowner be allowed an immediate right to contest Army Corp’s assertion of regulatory authority.
Status: PENDING. Amicus brief filed 3/2/16.North Dakota v. Heydinger – Regulatory Reform
MN Supreme Court. NFIB joined with Pacific Legal Foundation in this case, arguing that Minnesota’s green energy standards violate the dormant commerce clause. In this case Minnesota’s regulations effectively control out-of-state conduct, in a manner that amounts to extraterritorial regulation.
Hall v. State of Minnesota – Property Rights (Unclaimed property law)
Minnesota Supreme Court
A Minnesota statute designates bank accounts and other property held by a third party on behalf of an individual to be presumed abandoned after a period of inactivity—three years in most cases. At that time the bank or other such entity is required to transfer the property to the State. While there is a procedure for those seeking to reclaim their property, the State will not pay interest for the time that it holds one’s property under this regime. Moreover, the State gives no affirmative notice to affected owners, but instead makes information on affected accounts available on a searchable website. Since this regime may affect the rights of certain small business owners, NFIB Legal Center filed an amicus brief arguing that the Constitution requires the State to mail out actual notice to affected individuals and further requires payment of interest for the time the State holds the property in question. More broadly, NFIB’s amicus brief emphasized that the state may not avoid a problem under the Takings Clause merely by enacting legislation aimed at extinguishing previously recognized common law property rights.
Status: PENDING. Amicus brief filed 5/25/17.
White v. City of Elk River – Land Use and Property Rights
Minnesota Supreme Court
In this case, small business owner who has run a campground since the 1970s is now being told that she must cease camping activities. In 1983, her city enacted a zoning ordinance that prohibited campgrounds, except if the landowner acquired a conditional use permit from the city. The business owner obtained a conditional use permit in 1984. In 2010, the City revoked its 1984 conditional use and the business owner appealed the decision.
The NFIB Legal Center filed in this case arguing that the campground owner never needed to obtain any permit to continue the same campground operations that it had run since the 1970s. The Minnesota Supreme Court accepted these arguments in ruling in favor of the landowner.
If you have a case that impacts small business, please contact us at: 1-800-552-NFIB as we are actively looking for opportunities to weigh in on important issues in this state. NFIB Small Business Legal Center is involved in many cases that impact this state and others; to see our complete list of Supreme Court cases click on Washington, DC on the interactive map.